[1895] A.C.

587

HOUSE OF LORDS

THE MAYOR, ALDERMEN AND BURGESSES OF THE BOROUGH OF

BRADFORD, APPELLANTS;
AND
EDWARD PICKLES, RESPONDENT.

COUNSEL:

SOLICITORS: For appellants: Cann & Son for W. T. McGowen,Bradford.

For respondent: Ullithorne, Currey & Currey for W. & G. Burr & Co.,
Keighley.

JUDGES: Lord Halsbury L.C., Lord Watson, Lord Ashbourne, and Lord
Macnaghten.

DATE: 1895 July 29.

Watercourse – Water percolating underground – Interference with flow of

percolating Water – Mala Fides – Lawful act done with malicious Motive –
Bradford Waterworks Act 1854 (17 & 18 Vict. c. cxxiv.) s. 49.

No use of property which would be legal if due to a proper motive can

become illegal because it is prompted by a motive which is improper or
even malicious.

The owner of land containing underground water, which percolates by

undefined channels and flows to the land of a neighbour, has the right to
divert or appropriate the percolating water within his own land so as to
deprive his neighbour of it: Chasemore v. Richards (7 H. L. C. 349). And
his right is the same whatever his motive may be, whether bonä fide to
improve his own land, or maliciously to injure his neighbour, or to induce
his neighbour to buy him out.

By Lord Watson: The law of Scotland on this point is not accurately stated
by Lord Wensleydale in Chasemore v. Richards (7 H. L. C. at p. 388).

The decision of the Court of Appeal ([1895] 1 Ch. 145) affirmed.

THE following statement of the facts is taken from the judgment of Lord
Watson:-

The appellants have purchased under statutory powers, and [*588] are
now vested with the whole undertaking of the Bradford Waterworks
Company incorporated by an Act passed in 1854 (17 & 18 Vict. c. cxxiv.),
which transferred to that company the undertaking of a corporation,
having the same name, created by statute in 1842 (5 Vict. Sess. 2, c. vi.),
together with all rights and privileges thereto belonging. The older of these
companies acquired, for the purposes of their undertaking, a parcel of land
known as Trooper Farm, and also certain springs and streams arising in or
flowing through the farm. From these springs and streams the appellants
and their predecessors have hitherto obtained a valuable supply of water
for the domestic use of the inhabitants of Bradford.

Trooper Farm is bounded on the west and north by lands belonging to the
respondent which are about 140 acres in extent. The first of these
boundaries, on the west, which is alone of importance in the present case,
is a public highway called Doll Lane. The respondent’s land to the west of
that boundary is on a higher level than Trooper Farm, and has a steep
slope downwards to the lane. Its substrata are intersected by two faults
running from east to west, one from each end of the boundary, which
prevent the escape of percolating water either to the north or south; and
the nature and the inclination of the strata are such that the subterranean
water which they contain must, by the natural force of gravitation,
eventually find its way to Trooper Farm.

The sources from which the appellants derive a supply of water near to the
western boundary of Trooper Farm are two in number. The first of these is
a large spring, known as Many Wells, which issues from their ground
twenty or thirty yards to the east of Doll Lane. The second is a stream to
the south of Many Wells, which has its origin in a smaller spring on the
respondent’s land, close to Doll Lane, at a point known as the Watering
Spot, from which the water runs in a definite channel into Trooper Farm.

It is an admitted fact that neither the appellants nor either of the

companies whose undertaking is now vested in them ever acquired from
the respondent or his predecessors in title any part of their legal right to or
interest in the water in their land, 589 whether above or below the ground;
and also that the statutes, to the benefit of whose provisions the
appellants are now entitled, make no provision for compensating the
respondent, in the event of such right or interest being prejudicially
affected by the appellants’ undertaking.

In the year 1892 the respondent began to sink a shaft on his land
adjoining the lane, and to the west of the Many Wells Spring, and also to
drive a level through his land for the professed purpose of draining the
strata, with a view to the working of his minerals. These operations had
the effect of occasionally discolouring the water in the Many Wells Spring,
and also of diminishing to some extent the amount of water in that spring,
and in the stream coming from the Watering Spot; and it became apparent
that, if persevered in, they would result in a considerable and permanent
diminution of the water supply obtainable from these sources. The
appellants then brought the present suit, in which they crave an injunction
to restrain the respondent from continuing to sink the shaft or drive the
level, and from doing anything whereby the waters of the spring and
stream might be drawn off or diminished in quantity, or polluted, or
injuriously affected.

The appellants alleged in their statement of claim that the respondent had
not a bonä fide intention to work his minerals, and that his intention was
to injure the appellants and so to endeavour to induce them either to
purchase his land or to give him some other compensation.

North J. being of opinion that the respondent’s acts were prohibited by

statute granted an injunction(1). The Court of Appeal (Lord Herschell L.C.,
Lindley and A. L. Smith L.JJ.) reversed this decision and declared that the
appellants were not entitled to any of the relief claimed in the action(2).
The Act of 1854 incorporated among others sect. 14 of the Waterworks
Clauses Act 1847.

Sect. 49 of the Act of 1854 was almost identical in terms with sect. 234 of
the Act of 1842 and ran as follows:–

“It shall not be lawful for any person other than the company to divert
alter or appropriate in any other manner than by law

(1) [1894] 3 Ch. 53.

(2) [1895] 1 Ch. 145. [*590]

they may be legally entitled any of the waters supplying or flowing from
certain streams and springs called ‘Many Wells,’ arising or flowing in and
through a certain farm called ‘Trooper’ or Many Wells Farm in the township
of Wilsden in the parish of Bradford, or to sink any well or pit or do any act
matter or thing whereby the waters of the said springs might be drawn off
or diminished in quantity; and if any person shall illegally divert alter or
appropriate the said waters or any part thereof or sink any such well or pit
or shall do any such act matter or thing whereby the said waters may be
drawn off or diminished in quantity, and shall not immediately on being
required so to do by the company repair the injury done by him, so as to
restore the said springs and the waters thereof to the state in which they
were before such illegal act as aforesaid, he shall forfeit to the company
any sum not exceeding five pounds for every day during which the said
supply of water shall be diverted or diminished by reason of any work
done or act performed by or by the authority of such person, in addition to
the damage which the company may sustain by reason of their supply of
water being diminished.”

May 9. Cozens-Hardy Q.C. and B. Eyre for the appellants:–

The respondent in diverting this water is not making a reasonable use of

the land. He is acting maliciously, and the cases shew that a user which
would otherwise be justifiable ceases to be so when the object is to injure
another. This principle was applied in the early case of Keeble v.
Hickeringill (1), in which a decoy was disturbed by shooting. In Acton v.
Blundell (2), in which the right to intercept underground water was
established, this limitation is expressed. Tindal C.J. at p. 353 quotes
Marcellus: “Si non animo vicini nocendi, sed suum agrum meliorem
faciendi”; and the same passage is quoted by Lord Wensleydale
in Chasemore v. Richards (3). Lord Wensleydale says: “Every man has a
right to the natural advantages of his soil. … But according to the rule of
reason and law ‘Sic utere tuo ut alienum non laedas,” it seems right to
hold that he ought to exercise his

(1) 11 Mod. 74, 131; 11 East, 574, n.

(2) 12 M. & W. 324.

(3) 7 H. L. C. 349, 387. [*591]

right in a reasonable manner with as little injury to his neighbour’s rights

as may be.” In Smith v. Kenrick (1) the same limitation on freedom of
action is imposed; and Maule J. says that if a man in the legitimate use of
his own land “acts negligently or capriciously and injury results, no doubt
he is liable.” In Mogul Steamship Co. v. Macgregor, Gow & Co. (2) Bowen
L.J. after saying that a man is legally justified in the bonä fide use of his
property or the exercise of his trade, even if what he does seems selfish or
unreasonable, adds: “But such legal justification would not exist where the
act was merely done with the intention of causing temporal harm, without
reference to one’s own lawful gain or the lawful enjoyment of one’s own
rights.” The respondent’s conduct comes distinctly within the exceptions
there expressed.

[They also contended that the respondent’s conduct was forbidden by the
Bradford Waterworks Act 1854 s. 49.]

Everitt Q.C., Tindal Atkinson Q.C., Butcher and A. P. Longstaffefor the

respondent were not heard.

The House took time for consideration.

July 29. LORD HALSBURY L.C.:–

My Lords, in this action the plaintiffs seek to restrain the defendant from
doing certain acts which they allege will interfere with the supply of water
which they want, and which they are incorporated to collect for the
purpose of better supplying the town of Bradford. North J. ordered the
injunction to issue, but the Court of Appeal, consisting of Lord Herschell,
Lindley L.J. and A. L. Smith L.J., reversed his judgment.

The facts that are material to the decision of this question seem to me to
lie in a very narrow compass. The acts done, or sought to be done, by the
defendant were all done upon his own land, and the interference, whatever
it is, with the flow of water is an interference with water, which is
underground and not shewn to be water flowing in any defined stream, but
is percolating water, which, but for such interference, would undoubtedly

(1) 7 C. B. 515, 559.

(2) 23 Q. B. D. 598, 618. [*592]

reach the plaintiffs’ works, and in that sense does deprive them of the
water which they would otherwise get. But although it does deprive them
of water which they would otherwise get, it is necessary for the plaintiffs
to establish that they have a right to the flow of water, and that the
defendant has no right to do what he is doing.

My Lords, I am of opinion that neither of those propositions can be

established. Apart from the consideration of the particular Act of
Parliament incorporating the plaintiffs, which requires separate treatment,
the question whether the plaintiffs have a right to the flow of such water
appears to me to be covered by authority. In the case of Chasemore v.
Richards (1), it became necessary for this House to decide whether an
owner of land had a right to sink a well upon his own premises, and
thereby abstract the subterranean water percolating through his own soil,
which would otherwise, by the natural force of gravity, have found its way
into springs which fed the River Wandle, the flow of which the plaintiff in
that action had enjoyed for upwards of sixty years.

The very question was then determined by this House, and it was held that
the landowner had a right to do what he had done whatever his object or
purpose might be, and although the purpose might be wholly unconnected
with the enjoyment of his own estate.

It therefore appears to me that, treating this question apart from the

particular Act of Parliament, and, indeed, apart from the 49th section of
the Act of Parliament upon which the whole question turns, it would be
absolutely hopeless to contend that this case is not governed by the
authority of Chasemore v. Richards (1).

This brings me to the 49th section of the statute 17 & 18 Vict. c. cxxiv.,
upon which reliance has been placed. [His Lordship read it.]

Whatever may be said of the drafting of this section, two things are clear:
first, that the section in its terms contemplates that persons other than the
company may be legally entitled to divert, alter, or appropriate the waters
supplying or flowing from

(1) 7 H. L. C. 349. [*593]

the streams and springs; and, secondly, that the acts against which the
section is directed must be illegal diversion, alteration, or appropriation of
the said waters.

The natural interpretation of such language seems to me to be this: that

whereas the generality of the language of the section might apply to any
alteration or appropriation of waters supplying or flowing from the streams
and springs called “Many Wells,” the section only intended to protect such
streams and springs and supplies as the company should have acquired a
right to by purchase, compensation, or otherwise, but in such-wise as
should vest in them the proprietorship of the waters, streams, springs, &c.
And lest the generality of the language should give them more than that to
which they had acquired the proprietary right, the legal rights of all other
persons were expressly saved; and upon this assumption the latter part of
the section makes penal the illegal diversion, alteration, or appropriation
of any streams, &c., of which, by the hypothesis, the company had
become the proprietor.

I do not think that North J. does justice to the language of the section
when he says that “the section enacts that a man is not to do certain
specified things except so far as he may lawfully do them.” The fallacy of
that observation (with all respect to North J.) resides in the phrase “certain
specified things.” If my reading of the section be correct, the thing that is
prohibited is taking or diverting water which has been appropriated and
paid for by the company; but the thing which is not prohibited is taking
water which has not reached the company’s premises, to the property in
which no title is given by the section, and which, by the very act
complained of, never can reach the company’s premises at all. To use
popular language, therefore, what is prohibited is taking what belongs to
the company, and what is not prohibited is taking what does not belong to
the company.

My Lords, I have used popular language because I have no doubt that the
draftsman who drew the section was encountered with the proposition in
his own mind that you could not absolutely assert property of percolating
water at all. You may have a right to the flow of water; you may have a
property in the [*594] water when it is collected and appropriated and
reduced into possession; but, in view of the particular subject-matter with
which the draftsman was dealing, it seems to me intelligible enough why
he adopted the phraseology now under construction.

It appears to me that this is the true construction of the section from the
language itself. But I confess I can entertain no doubt that the mere fact
that the section, as construed by the plaintiffs, affords no right to
compensation to those whose rights might be affected, is conclusive
against the construction contended for by the plaintiffs.

The only remaining point is the question of fact alleged by the plaintiffs,
that the acts done by the defendant are done, not with any view which
deals with the use of his own land or the percolating water through it, but
is done, in the language of the pleader, “maliciously.” I am not certain that
I can understand or give any intelligible construction to the word so used.
Upon the supposition on which I am now arguing, it comes to an allegation
that the defendant did maliciously something that he had a right to do. If
this question were to have been tried in old times as an injury to the right
in an action on the case, the plaintiffs would have had to allege, and to
prove, if traversed, that they were entitled to the flow of the water, which,
as I have already said, was an allegation they would have failed to
establish.

This is not a case in which the state of mind of the person doing the act
can affect the right to do it. If it was a lawful act, however ill the motive
might be, he had a right to do it. If it was an unlawful act, however good
his motive might be, he would have no right to do it. Motives and
intentions in such a question as is now before your Lordships seem to me
to be absolutely irrelevant. But I am not prepared to adopt Lindley L.J.’s
view of the moral obliquity of the person insisting on his right when that
right is challenged. It is not an uncommon thing to stop up a path which
may be a convenience to everybody else, and the use of which may be no
inconvenience to the owner of the land over which the path goes. But
when the use of it is insisted upon as a right, it is a familiar mode of
testing that right to stop the permissive e use, which the owner of the
land [*595] would contend it to be, although the use may form no
inconvenience to the owner.

So, here, if the owner of the adjoining land is in a situation in which an act
of his, lawfully done on his own land, may divert the water which would
otherwise go into the possession of this trading company, I see no reason
why he should not insist on their purchasing his interest from which this
trading company desires to make profit.

For these reasons, my Lords, I am of opinion that this appeal ought to be

dismissed with costs, and that the plaintiffs should pay to the defendant
the costs both here and below.

LORD WATSON (after stating the facts given above):–

My Lords, it is clear that, apart from any privilege which may have been
conferred upon them by statute, the respondent, as in a question with the
appellants, has a legal right to divert or impound the water percolating
beneath the surface of his land, so as to prevent its reaching Trooper
Farm, and feeding, or assisting to feed, the Many Wells Spring or the
stream flowing from the Watering Spot. Upon that point there can be no
doubt since Chasemore v. Richards (1) was decided by this House in the
year 1859. But the appellants pleaded at your Lordships’ Bar, as they did
in both Courts below, that the principle of Chasemore v. Richards (1) is
inapplicable to the present case, because, in the first place, the operations
contemplated and commenced by the respondent are by statute expressly
prohibited; and, in the second place, these operations were designed and
partly carried out by the respondent, not with the honest intention of
improving the value of his land or minerals, but with the sole object of
doing injury to their undertaking.

The statutory provisions upon which the appellants rely as supporting the
first of these pleas are to be found in sect. 234 of the Act of 1842, and in
sect. 49 of the Act of 1854, which is a mere repetition of the previous
enactment. The clause relates to the Many Wells Springs, an expression
which, as the context shews, includes the stream coming from the
Watering Spot. It contains two separate enactments, the one of them
prohibitory and the

(1) 7 H. L. C. 349. [*596]

other penal. First of all, it declares that it shall not be lawful “for any
person other than the said company to divert, alter, or appropriate, in any
other manner than by law they may be legally entitled,” any of the waters
“supplying or flowing from” these springs, or to sink any well or pit, or to
do any act, matter, or thing whereby “the waters of the said springs” may
be drawn off or diminished in quantity. That declaration is followed by the
provision that “if any person shall illegally divert, alter, or appropriate the
said waters, or any part thereof, or sink any such well or pit, or shall do
any such act, matter, or thing whereby the said waters shall be drawn off
or diminished in quantity,” and shall not on being required to do so by the
company, immediately restore the springs and waters to the same
condition in which they were before the illegal act, they shall be liable to
pay five pounds to the company for each day until restoration is made,
besides compensating the company for any damage sustained through
their illegal act.

The appellants endeavoured to construe the prohibitory clause as effecting

a virtual confiscation in their favour of all water rights in or connected with
the respondent’s land lying to the vest of Trooper Farm. It appears to me
to be exceedingly improbable that the Legislature should have intended to
deprive a landowner of part of his property for the benefit of a commercial
company without any provision for compensating him for his loss. But it is
not necessary to rely upon probabilities, because, in my opinion, the
language of the clause is incapable of bearing such an interpretation. I
think the plain object of the statutory prohibition, which has two distinct
branches, was to give protection to the supply of water which had been
acquired by or belonged to the company for the time being; and that it
was not meant to forbid, and does not prevent, any legitimate use made
by a neighbouring proprietor of water running upon or percolating below
his land before it reached the company’s supply and became part of their
undertaking.

The first branch makes it unlawful for any person other than the company
to divert, alter, or appropriate any of the “waters now supplying” the Many
Wells Springs, which appear to include sources of supply existing upon
lands adjacent to Trooper [*597] Farm. Had the prohibition been absolute,
it would have struck against the operations of the respondent; but it is
subject to the qualification that the respondent, or any landowner similarly
situated, may lawfully divert those waters which ultimately feed the Many
Wells Springs, so long as he does so in any manuer which is not in excess
of his common law rights. The respondent’s operations, of which the
appellants complain, are within his proprietary right, and are therefore not
obnoxious to that part of the prohibition.

The second branch, which prohibits the sinking of wells and other
operations, has, in my opinion, no reference to outside waters more or less
distant which might ultimately find their way to the Many Wells Springs. It
relates to “the waters of the said springs” – an expression which can only
denote the waters which have actually reached the Many Wells Springs, or
some channel or reservoir which has been prepared for their reception
upon their issuing from these springs. The prohibition gives effective
protection against the withdrawal or diminution, either by an adjacent
proprietor or any other person, of waters which have come within the
dominion of the appellants. But it does not prevent the diversion or
impounding by an adjacent proprietor of water in his own land which has
never reached that point, so long as his operations are such as the law
permits. For these reasons, in so far as concerns the. first plea urged for
the appellants, I concur in the judgment of the Court of Appeal.

The second plea argued by the appellants, which was rejected by both
Courts below, was founded upon the text of the Roman law (Dig. lib. 39,
tit. 3, art. 1, s. 12), and also, somewhat to my surprise, upon the law of
Scotland. I venture to doubt whether the doctrine of Marcellus would assist
the appellants’ contention in this case; but it is unnecessary to consider
the point, because the noble and learned Lords who took part in the
decision of Chasemore v. Richards (1) held that the doctrine had no place
in the law of England.

I desire, however, to say that I cannot assent to the law of Scotland as

laid down by Lord Wensleydale in Chasemore v. Richards. (2) The noble
and learned lord appears to have

(1) 7 H. L. C. 349.

(2) 7 H. L. C. at p. 388. [*598]

accepted a passage in Mr. Bell’s Principles (sect. 966), which is expressed

in very general terms, and is calculated to mislead unless it is read in the
light of the decisions upon which it is founded. I am aware that the phrase
“in aemulationem vicini” was at one time frequently, and is even now
occasionally, very loosely used by Scottish lawyers. But I know of no case
in which the act of a proprietor has been found to be illegal, or restrained
as being in aemulationem, where it was not attended with offence or injury
to the legal rights of his neighbour. In cases of nuisance a degree of
indulgence has been extended to certain operations, such as burning
limestone, which in law are regarded as necessary evils. If a landowner
proceeded to burn limestone close to his march so as to cause annoyance
to his neighbour, there being other places on his property where he could
conduct the operation with equal or greater convenience to himself and
without giving cause of offence, the Court would probably grant an
interdict. But the principle of aemulatio has never been carried further.
The law of Scotland, if it differs in that, is in all other respects the same
with the law of England. No use of property, which would be legal if due to
a proper motive, can become illegal because it is prompted by a motive
which is improper or even malicious.
I therefore concur in the judgment which has been moved by the Lord
Chancellor.

LORD ASHBOURNE:–

My Lords, I concur. To my mind the case is clear, and turns upon

considerations sufficiently simple and far from obscure.

The plaintiffs have no case unless they can shew that they are entitled to
the flow of the water in question, and that the defendant has no right to
do what he is doing. Putting aside the statutes, the defendant’s rights
cannot be seriously contested. The law stated by this House in Chasemore
v. Richards (1) cannot be questioned. Mr. Pickles has acted within his legal
rights throughout; and is he to forfeit those legal rights and be punished
for their legal exercise because certain motives are

(1) 7 H. L. C. 349. [*599]

imputed to him? If his motives were the most generous and philanthropic
in the world, they would not avail him when his actions were illegal. If his
motives are selfish and mercenary, that is no reason why his rights should
be confiscated when his actions are legal.

It is to be noted that the defendant or his predecessors in title never

parted with any of their legal rights; it is not suggested that the plaintiffs,
by agreement or otherwise, ever acquired them; and no indication is given
that there is any intention to compensate the defendant for his legal rights
sought to be appropriated or injuriously affected by the plaintiffs.

The appellants’ contention on the construction of the statutes would

practically confiscate the defendant’s water rights. I see nothing in the
statutes to interfere with or prejudice his legal rights. Very clear words
would be required to support the contention that legal rights have been
swept away without compensation. Waters that have come under the
control of the appellants are fully protected; but there is not a word to
hinder or cramp the action of Mr. Pickles unless he acts “illegally,” or
proceeds “in any other manner than by law he may be legally entitled.”

I therefore concur in the order proposed.

LORD MACNAGHTEN:–

My Lords, for forty years the corporation of Bradford have supplied their
town with water. They were empowered to do so by an Act of Parliament
passed in 1854, which authorized and required them to purchase the
undertaking of a then existing company called “The Bradford Waterworks
Company.”

The chief source of their water supply was taken over from the company.
It comes from a cluster of springs known as “The Many Wells.” These
springs issue from the lower slope of a hillside some distance from the
town. Above them, in the immediate neighbourhood, there is a tract of
land belonging to Mr. Pickles, the respondent. Owing to the fall of the
ground and the nature and lie of the strata beneath the surface, Mr.
Pickles’ land forms a sort of gathering-room or reservoir
for [*600] subterranean water. Two faults, nearly parallel to each other,
run downwards through it, and there is a bottom of impermeable clay. At
present there is no way of escape for the imprisoned waters except by the
Many Wells Springs.

Within the ambit of his own land Mr. Pickles has set about making a tunnel
or drift which, apparently, is intended to pierce one of the two faults that
keep the underground water within bounds. If this is done the result, it is
said, will be to allow the water to run off in some other direction.

The corporation claim an injunction to restrain Mr. Pickles from going on

with the proposed work. They put their case in two ways. They say that
under the circumstances the operation which Mr. Pickles threatens to carry
out is something in excess of his rights as a landowner. Failing that
ground, they maintain that his proceedings are in contravention of the
express terms of their special Act.

As regards the first point, the position of the appellants is one which it is
not very easy to understand. They cannot dispute the law laid down by
this House in Chasemore v. Richards. (1) They do not suggest that the
underground water with which Mr. Pickles proposes to deal flows in any
defined channel. But they say that Mr. Pickles’ action in the matter is
malicious, and that because his motive is a bad one, he is not at liberty to
do a thing which every landowner in the country may do with impunity if
his motives are good. Mr. Pickles, it seems, was so alarmed at this view of
the case that he tried to persuade the Court that all he wanted was to
unwater some beds of stone which he thought he could work at a profit. In
this innocent enterprise the Court found a sinister design. And it may be
taken that his real object was to shew that he was master of the situation,
and to force the corporation to buy him out at a price satisfactory to
himself. Well, he has something to sell, or, at any rate, he has something
which he can prevent other people enjoying unless he is paid for it. Why
should he, he may think, without fee or reward, keep his land as a store-
room for a commodity which the corporation dispense, probably not

(1) 7 H. L. C. 349. [*601]

gratuitously, to the inhabitants of Bradford? He prefers his own interests to

the public good. He may be churlish, selfish, and grasping. His conduct
may seem shocking to a moral philosopher. But where is the malice? Mr.
Pickles has no spite against the people of Bradford. He bears no ill-will to
the corporation. They are welcome to the water, and to his land too, if
they will pay the price for it. So much perhaps might be said in defence or
in palliation of Mr. Pickles’ conduct. But the real answer to the claim of the
corporation is that in such a case motives are immaterial. It is the act, not
the motive for the act, that must be regarded. If the act, apart from
motive, gives rise merely to damage without legal injury, the motive,
however reprehensible it may be, will not supply that element.

On this point both North J. and the Court of Appeal decided against the
corporation. And the decision, as it seems to me, is plainly right.

On the second point, on which North J. was in favour of the corporation

and the Court of Appeal against them, there is certainly more to be said. I
quite agree with the Court of Appeal in the result at which they have
arrived. But, speaking for myself, I rather take leave to doubt whether the
section of the special Act on which the question turns is so unsatisfactory,
so ill-drawn, and so difficult to construe as it seemed to be to the Court of
Appeal.

The old waterworks company was incorporated by an Act passed in 1842.

It was dissolved and re-incorporated in 1854 in view of the immediate
transfer of the undertaking to the corporation.

In the Act of 1854, the provisions of which were kept in force for the
benefit of the corporation, the section in question is the 49th. But that
section is merely a reproduction of sect. 234 in the Act of 1842. And it will
be more convenient to deal with the earlier Act.

The Act of 1842 scheduled certain lands which the company were
empowered to take. Among them was part of a farm belonging to one
Seth Wright, which was known as Trooper or Many Wells Farm. By sect.
233 the company were authorized [*602] to divert or alter the course of a
certain beck called Hewenden Beck, which is a tributary of the River Aire,
“and also to divert and take the water from” the Many Wells Springs,
described as “the springs and streams of water called Many Wells, arising
or flowing in and through … Trooper or Many Wells Farm.”

At the date of the passing of the Act, the waters issuing from the Many
Wells Springs in Trooper Farm, and a stream which rose in the adjoining
land, flowed in several defined channels through Trooper Farm into
Hewenden Beck, which forms one of the boundaries of the farm. The
scheduled portion of the farm comprised apparently some but not all of
those channels. However, after the Act was passed, the company
purchased the whole of Trooper Farm; and, as required by the Act, they
made compensation to the millowners on Hewenden Beck for the loss of
the waters of the Many Wells Springs.

Sect. 234 is a protective clause corresponding in the main with sect. 14 in

the Waterworks Clauses Act 1847. It was to come into operation after the
purchase of the Many Wells Springs.

According to the ordinary course of legislation in this country, a clause of

that sort is intended to protect property, rights, and interests which have
been acquired by purchase, not to transfer arbitrarily from one person to
another property and rights for which nothing has been paid, and for which
no compensation is provided.

In the first place, the section says that, “After the Many Wells Springs
have been purchased by the company, it shall not be lawful for any person
other than the said company to divert, alter, or appropriate in any other
manner than by law they may be legally entitled any of the waters now
supplying or flowing from the same.” Both as regards the underground
sources of the springs and as regards the streams flowing from them in
their natural course it forbids any act by any person in excess of his legal
rights. At that time it must be remembered that the rights of landowners
in regard to underground water had not been finally determined. If the
view which commended itself to the Court of Exchequer in Dickinson v.
Grand Junction Canal Company (1) had been established, the proposed
action of

(1) 7 Ex, 282. [*603]

Mr. Pickles would, no doubt, have been illegal. As it is, there is nothing in
the first part of the prohibition to restrict or curtail his rights as a
landowner in dealing with underground water percolating through his land
in unknown channels.

In the second place, the section declares that no person but the company
is “to sink any well or pit, or do any act, matter, or thing whereby the
waters of the said springs may be drawn off or diminished in quantity.”
What is the meaning of the expression, “The waters of the said springs”?
The natural and obvious meaning seems to me to be the waters issuing
from the springs, such as they happen to be in quantity and volume, at
the point of issue, or in one case at the point of entry, into Trooper Farm.
The expression cannot include the underground sources which serve to
feed the springs. Otherwise you would have this singular result, that
things which by reason of the saving of existing rights are treated as legal
and permissible in one part of the clause are treated as illegal and
prohibited by another. It must mean the water which the company were
authorized to “divert and take from” those springs which the section at its
commencement assumes the company to have purchased – not the waters
which supply the springs, but the waters which the springs supply. A
comparison of other sections in the Act will confirm this view if any
confirmation is required. The expression, “The waters of the said ‘Many
Wells’” occurs in sect. 275, and then it is evidently synonymous with the
following words in a parallel passage in sect. 238: “The water issuing from
the springs of water before mentioned called ‘Many Wells,’ and which is
hereby authorized to be taken and diverted for the purposes of this Act.”

After the company had compensated the mill-owners on Hewenden Beck

and purchased Trooper Farm, the waters of the Many Wells Springs at and
from the point of issue in Trooper Farm, and the water of the stream which
rose in the adjoining land at and from the point of its entry into Trooper
Farm, became the absolute property of the company, and it was the duty
of the company to carry those waters to Bradford. No one was to interfere
with them. Any such interference is characterised, in a later part of the
section, as an illegal act. [*604]

And, indeed, it seems to me very difficult to conceive how such an act

could in any case be legal, unless the company constructed their works in
a perverse and foolish manner. No one from whom the company acquired
land or even an easement for the purposes of their works could lawfully let
down those works. No one else, it may be assumed, would be in a position
to do so. No one could lawfully tap their aqueducts or conduits.

I am of opinion that the act which Mr. Pickles proposes to do is not within
either of the two classes of prohibited acts mentioned in sect. 234. It is
not within the first class, because at the time of the passing of the Act his
predecessor was legally entitled, and he is now legally entitled, to do the
thing which is complained of. It is not within the second class, because Mr.
Pickles does not propose to do anything which can have the effect of
drawing off or diminishing in quantity the waters of the Many Wells
Springs, such as they may be at the point of issue in Trooper Farm, or as
regards the stream which does not rise in Trooper Farm at the point of its
entry into that farm.

It was argued somewhat faintly that sect. 49 of the Act of 1854 must have
a wider meaning than that which I think ought to be attributed to sect.
234 of the Act of 1842, because the Act of 1854 incorporates the
Waterworks Clauses Act of 1847, and sect. 14 of that Act covers, it is said,
everything which is covered by sect. 234 of the Act of 1842 if it be
 construed as it seems to me it ought to be construed. There would be very
little in such an argument under any circumstances, because it is only
natural that the promoters of the legislation of 1854 would, on the
reconstruction of the company, desire to retain or re-enact every clause in
the former Act which could make for their protection. But the truth is, that
the section of the Waterworks Clauses Act of 1847, which corresponds with
sect. 49 of the Act of 1854, does not apply to the Many Wells Springs.
They were purchased under the Act of 1842. The Act of 1854, which
incorporates the Waterworks Clauses Act 1847, declares that in construing
that Act the expression “the special Act” shall mean the Act of 1854. It
does not mean or include the Act of 1842. [*605]

I am, therefore, of opinion that this appeal should be dismissed with costs.

Order appealed from affirmed and appeal dismissed with costs here and
below: Action dismissed.

Lords’ Journals 29th July 1895.